Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-04-25
Court of ApDaals.

Court of Appeals.
John P. White, presiding Judge; j. NJ. Hur
and Sam a. Wilson, judges; James L White
clerk; W L Davidson, assistant attorney
general; NJ. NJ. johnson, bailif
G A. Jones ct al. VS.. R. R. Spann
! from Dallas county; opinion by White
2. j. Judgment was recovered b
appellee in Justice court for sos 50 Oh
| March IS, 1885 On April appellant
filed an appeal bond to County court
There are two Endorsements on the bone
made by the justice, viz: First, "File(
IS. II. Schule, J. P" and second
'approved the within bond. H Schulz
The first Endorsement evidently means
fourth month, third day of the month
| 1885. There is no date to the approva
and it is presumed to be separate act
The justice did not file the transcript anC
original papers in the County court until
May s, 1885. When these papers were
| filed the May term of the County court
was in session, and had been for four
days, 1t being the first term of the court
after appeal was perfected. On October
IA, 1855, appellee filed motion 10 dis.
miss the appeal. l. Because the tran
scrip, etc, were not filed at the proper
time in the court, nor at the first day OF
the frst term after trial of the case. 2
Because appeal bond was not filed and
approved within ten days after Judgment
according to law. 3. No notice Of appeal
was given in the court below. The mo-
ton was sustained and the appeal dis
missed. In order to settle
this question the statutes bear
ing on the SUBJECT must be considered.
Article 1889, Revised Statutes, has been
superseded by the amendment of April
Is, 1888, SO that it is substantially as fol-
lows now: "The party appealing, etc,
shall within ten days from the date of
the judgment file with the justice bond
with TWO or more Sureties approved by
the justice in double the amount payable,
etc. When such bond has been filed with
the justice, the appeal shall be held to
be perfected, but if upon the call Of
the docket upon appearance day in the
court, the appellee fails to appear in
person or by counsel, the case shall be
continued and unless due notice of
the appeal IN writing, etc,
has been given appellee no judg-
ment by default snail be entered.
Article 1910, Revised Statutes, says when
an appeal has been granted the Justice
must Immediately make out g transcript,
certify thereto, ETC., and transmit the
same to the clerk of the county court
Article 164l, Revised Statutes: Such
ETC., shall, if practicable, be
to the clerk of the county
court On or before the first day of the
first term of court thereafter, and if there
is not time they may be transmitted OF
or before the first day of the second
In rot mi
of the opinion that the amendment su-
persedes the original article, aud if so,
notice of appeal is no longer neces-
script. ETC., must be filed imme-
diately, and article 164I says it
shall be done if practicable on or before
the first day of the next term, and this
duty is not essential if not practicable.
and in fact is made dependent upon the
precticability Of the matter. Appellant
has nothing to do with the transm ssion
of the papers, and we think it but fair TO
presume if it is not done by the 1rst day |
Of the term that IL was not practicable, |
and the justice has done his duty. If the |
Justice flies the transcript on or before |
the first day of the second term, he is pre-
sumed rs have done his duty, and if !
he does not the appellant must apply for !
3 writ of certiorari, and after the first |
lay of the second term is the only time /
appellee can legally make motion to |
dismiss. When the transcript is filed at |
The first term and not on the first day it |
Is a case returnable to the second term,
Is to the rights of appellee. II the papers |
nave not been filed by the first day of the |
second term nor applied for by certiorari |
~ the second day of that term
hen appellee can move to dis
Miss, and it should be granted |
lnder ordinary circumstances, and if he
loes not make the motion at the second |
erm he is presumed to have waived his
light. Such motion being in regard to an
in the proceedings should be
AIKEN advantage of as soon as available.
n regard to the bond not being approved !
within ten days we refer to article 1889,
r. S, which says the appeal is
when the bond has
)een fled with the justice. And it
s presumed that justice will not receive
md file an appeal bond without APPROX
ng it. The court erred in dismissing the
IppraI because of the reasons given
Ibove, and the judgment is reversed and
he case remanded.
Missouri Pacific Railway Company vs..
\. B. Kreft, from Dallas county; opinion
" White, P. j. Whilst the record in
his cause shows that the justice tran
cript was not transmitted to the clerk of
he County court during the first term of
laid court after appeal, it shows that
transcript was filed before the first day of
he second term of the County court.
The motion to dismiss was not filed st
he second ERIN and came too late (see
Zones VS.. Spann, supra). Because it
vas error to sustain the motion to dis
Miss the appeal based on failure of ap-
,ellants to have the transcript fled il
ime, the judgment is reversed and the
ause remauded.
Hamp Wade alias Hemp Banks VS..
state, from Walker county; opinion by
Wilson, J. 1t was not error to over
uIe the exception to the Indictment and
he motion IN arrest of judgment, both
ased on the insGfficiency of indictment,
n that it does not appear from its
ace whether defendant killed
nan or beast or some
Danimate object. It is alleged in the
that appellant killed "Smutty,